RINGS AND COMBINES.

Press, Volume LX, Issue 11689, 16 September 1903, Page 7

RINGS AND COMBINES.

TRADE MONOPOLIES PREVENTION BILL. THE GOVERNMENT MEASURE. We. are indebted to the Premier for the following details Of the Trade Monopolies Prevention Bill, which was read a first time in the House of Representatives last night. A Bill intituled an Act to protect legitimate trade and commerce by prohibiting monopolies detrimental to the interests ot the people. Be it enacted by the General Assembly of New Zealand, in Parliament assembled, and by the authority of the same, as follows : SHORT TITLE. 1. The short title of this Act is the Trade Monopolies Prevention Act, 1903. INTERPRETATION. 2. In this Act, if not inconsistent with the context-, “Court” means the Court for tho investigation of monopolies provided for by this Act. “Goods” means any of the following articles, whether in the state of raw material or in any preparatory or final stage of manufacture—(l.) All articles' of food and drink, (II.) all kinds of building material and furniture, (III.) all articles of clothing, including boots and shoes. (IV.) all articles of fuel, (V.) soap and caudles, (VI.) gas and electricity, when used for lighting, (VII.) all kinds of agricultural implements. “Manager” means any secretary, foreman, overseer, or other officer of any company in any position of control or authority.

“Reasonable trade competition” means such competition in any trade as will not prevent, or tend t-o prevent, individual traders or firms, or limited companies engaged in such trade, and possessed of sufficient. capital, knowledge, and business capacity for carrying on such trade, from earning tho fair average profits commonly earned by traders in such trade in the absence of any trade monopoly. Provided that- in determining what amounts to reasonable trade competition the Court shall be guided not- only by the interests of the traders concerned, but principally by the following considerations—(l.) The interests of the consumers or purchasers of the goods sold by those engaged in such trade, (II.) the interests, material and social, of such trade, (III.) the distinction between competition in the wholesale and retail branches of such trade respectively. "Trade monopoly” means—(a) Any agreement, whether in writing or not-, whether express or implied, and whether all or only one or some of the parties thereto are resident in New Zealand, tho dominant or one of the main objects, whether direct or indirect, of which is (I.) to destroy, restrain, or prevent the reasonable • trade competition of other traders in tho same or a similar trade, and whether in New Zealand or not, with the parlies to such agreement, or (II.) to enhance the price of goods sold by the parties to such agreement-, whether such parties are engaged in the same trade or not, beyond tho price reasonably obtainable for such goods, if such prices were determined by the operations of reasonable trade competition, in the absence of such an agreement. (b) Any method of conducting or carrying on trade (including in the term “method,'’ the formation of a trust or combination of any sort-, whether corporate or incorporate, with an abnormal amount of capital, or abnormally extensive operations for any particular trade), whether such method is employed by one trader alone, or by several traders, the dominant or one of the main objects (whether direct or indirect) of which is that hereinbefore specified in subparagraphs ,*.) and (II.) of the last preceding paragraph (a) thereof. “Trade” means any business one of the purposes of c;«rrying on which is to sell goods, whether such goods are produced or manufactured by the person or company carrying on such business or not.

“Trader” means any person, incorporated company or trust carrying on any trade, and includes tho agent in New Zealand of any British or foreign company or of any person carrying on trade outside New Zealand. TRADE MONOPOLIES ILLEGAL. 3. Trade monopolies are hereby declared to be illegal. THE COURT. 4. For tho investigation of trade monopolies there shall be one Court, which shall consist of three members, as follows:—The Ohief Justice, tho Judge of the Supreme Court, other than the Chief Justice, usually presiding in the judicial district within which the defendant is resident (within the meaning of the code of civil procedure of the Supreme Court), or if more than one defendant, and they are resident in different districts, then for that judicial district in which that defendant is resident, whoso name appears first m the information referred to in section 20 hereof; the Judge of the Supreme Court whoso usual place of residence is nearest to the usual place of residence of tKe Judge selected in the manner provided by the last preceding paragraph lidreof. Provided that in any case where, in the opinion of the Chief Justice, it is otherwise impossible to constitute the Court under this section, he shall nominate two of the Judges of the Supreme Court to bemembers of such Court, and thereupon the two Judges so nominated shall, together with the Chief Justice, constitute such Court. Provided also that where the Chief Justice is unable to sit, he shall nominate some other Judge of tlfo Supreme Court to be a member of the Court. 5. (1) The Court shall be constituted to bear and try each matter as it arises, and shall ipso facto be dissolved when it lias pronounced its final judgment or order iiq each such matter. (2) The validity of the constitution of the Court shall in no caso be questioned. 6. The Court shall have a seal, which shall be judicially noticed in all Courts of judicature, and for all pin-poses. 7. The Chief Justice shall be President of the Court, or if he be not a member of the Court, the senior Puisne Judge of the Court shall be President.

8. The Court may decide all questions submitted to it by the opinion of the majority of its members," and the determination of the majority shall be deemed a determination by the whole Court. 9. Tlie Court shall sit in such town in New Zealand as the President deems most convenient for the hearing of each case, and may adjourn from time to time and from place to place, as it thinks fit. 10. The Court shall, in addition to the powers conferred on it. by this Act, Lave all the rights, powers and privileges of the Supreme Court, so far as they are applicable or necessary for the purposes of carrying out the objects of this Act, and in the case of any interlocutory application any member of the Court shall have power to hear the same and make any order thereon lie thinks fit. Provided that any. such order may be set aside or modified by the Court on application in that behalf. 11. The Court shall follow, mutatis mutandis, the procedure of Hie Supreme Court in civil cases, except where such procedure is expressly or impliedly modified by this Act or the regulations made under this Act.

12. Whenever it is necessary to alter or correct any order, judgment, direction or decree made or given by the Court so as to express the real intention of the Court, the Court may of its own motion, or on .e application of the registrar or of any other party to the proceedings, make such alteration or correction, and the President of the Court, at the hearing at which such order, judgment, direction or decree was made or given, may, from time to

time, notwithstanding that the Court may have been dissolved, ask the other two members of the Court to sit with him, and such sitting shall for all purposes be deemed to be an adjourned sitting of the sitting at which such order, judgment, direction or decree was made or given. 13. In all prosecutions, hearings and proceedings under this Act- no person shall bo excused from attending and testifying as a witness, or producing to the Court any books, papers, letters, contracts or other documents in his possession or under his control relating in any manner to the subject matter of such prosecutions, hearings, or proceedings. Provided that- no person called as a witness by the informant in any prosecution under this Act shall be subject to any fine for or on account of any transaction or thing concerning which he gives evidence or with respect to which he produces any books, papers, letter's, contracts or other documents, but- this shall not prevent the Court from exercising any of the powers conferred on it- by section 24 hereof other than that of imposing the fine therein provided for, upon the person so called.

14. (1) The Governor may from time to time appoint one or more persons to assist in carrying out the purposes of this Act, and may define their powers, functions and duties. (2) Every Registrar of the Supreme Court shall be- deemed to be a Registrar of the Court under this Act. INSTITUTION of proceedings.

15. Any Registrar of the Court shall, on receiving a notice in writing under the hand of either the Minister of Labour or the Minister of Commerce and Industries, or a petition in the form in the schedule hereto or to the like effect signed by no less than fifty respectable persons, that there are reasonable grounds for believing that a trade monopoly exists, forward the same to the Inspector of Police for t lie district- in which any alleged party to such trade monopoly is resident within the meaning of section 4 hereof. •

16. (1) On receipt of such communication the Inspector of Police shall make enquiry as to the truth of such complaint, and if. as the result of such inquiry, he has good reason to believe that any trader is guiltv of a trade monopoly, he shall report such belief and the grounds on which ii is based to the Commissioner of Police, who shall thereupon forward to the Solicitor-General and to the Auditor and Controller-General copies of such report. (2)» The SolicitorGeneral and the Auditor and ControllerGeneral may in their discretion call upon such trader to produce to them or to any Crown solicitor and Audit-Inspector appointed by them in writing for "hat purpose, all such books, papers, accounts, contracts, letters or other documents as the Solicitor-General and Auditor and Con-troller-General require. (3) Thereupon such trader shall produce to the Solicitor-General and Auditor and Controller-General or to the Crown Solicitor and Audit-Inspector appointed as aforesaid all such books, papers, accounts, contracts, letters or other documents, accompanied by a statutory declaration, to be made by such trader or in case of a Corporate Company by its manager, to the effect that a fuff and complete discovery has been made to tho Soli-citor-General and Auditor and ControllerGeneral or to the said Crown Solicitor and Audit-Inspector as the case may be, of all such books, papers, accounts, contracts, letters or other documents in the possession or under the control of such trader, and that the same have been produced to the Solicitor-General and Auditor and Con-troller-General or to the said Crown Solicitor and Audit-Inspector. 17. Every trader,' whether a corporate company or not, who fails to produce such books, papers, accounts, contracts, letters and other documents to the SolicitorGeneral and Auditor and Controller-General or to the Crown 'Solicitor and Audit-Inspec-tor appointed as aforesaid, accompanied by such declaration as aforesaid, is liable to a fino not exceeding £coo. 18. (1) If as the result of their investigation the Solicitor-General and Auditor and Controller-General find prirna. facie evidence that a trade monopoly exists, they shall report accordingly to the Attorney-General, who shall prepare an information against the trader appearing to be guilty of such trade monopoly, and direct the Registrar of th. Court at the Supreme Court office in which the information is to be filed under section 20 hereof to lay the same. (2) If the office of Attorney-General is vacant the SolicitorGeneral shall act under this section without the necessity of such report. 19. The information shall in every case be on behalf of Ids Majesty, and shall be in the form or to the effect stated in the regulations made under this Act and shall state generally the grounds upon which such information is laid. 20. (1) Such information shall be filed in the principal office of the Supreme Court in the judicial district in which the defendants are resident or if resident in different districts then the principal office of the judicial district in which that defendant is resident whose name appears first in such information, and in case of any doubt or uncertainty as to the office in which such information should be filed, the Chief Juj* tice. on application to him, in that behalf, shall determine the office in which such information shall be filed. (2) The Registrar of the Court shall thereupon issue and cause to he served upon every defendant named therein a summons in. the. prescribed, form requiring him to appear before the Court on the day at. the hour named in. such summons, being not earlier than 21 davs from the service of such summons, to answer the charge contained in the said information. . EVIDENCE. 21. On the hearing of any information as to a trade monopoly, the Court may admit any evidence it thinks fit, whether such evidence is strictly legal or distinctly relevant or not. . 22. It shall be prima facie evidence against a defendant of a trade , monopoly that since its commencement the goods sold by the defendant in the business in which such goods are sold, have since such date been abnormally high. DETERMINATION OF PROFITS. 23. In determining the profits made by any trader for the purposes of the last preceding section, the Court shall, if it thinks fit, first ascertain the full market value of all the assets of the said business (excluding, .goodwill), assuming such business were sold as a going concern, and if the rate of profits made by the defendant calculated upon such fuff market value is in excess of the fair average profits made by other traders in the same trade as tlie defendant calculated in the same way, such profits may be deemed abnormally high within the meaning of the last preceding section. POWERS OF THE COURT. 24. At the time and place fixed for the hearing of such information, the Court shall hoar evidence as to such alleged monopoly, and if satisfied that the defendant has been guilty of a trade monopoly, it may in its discretion by order or decree do any one or more of the following tilings:—(a) Declare tliat the defendant lias been guilty of a trade monopoly; (b) declare all or any agreement it thinks fit tending to establish or .promote such monopoly illegal, including agreements for supplies of goods to the defendant guilty of such monopoly; (c) declare that all or any contracts thereafter entered into with such defendant in furtherance of such monopoly, including contracts for the sale and supply of goods by such defendants, will be void and be unenforceable. Provided that the Court may in making such declaration qualify it in such manner as it thinks fit in order to protect any person contracting with such defendant boita fide and iu excusable ignorance of such declaration; (d) enjoin suoh defendant from further carrying on business in any manner amounting to a trade monopoly, and such injunction shall have the force, effect, and consequences of an injunction granted by a Judge of the Supreme Court in any action under “The Supreme Court Act, 1882”; (c)Qf such defendant is a corporate company, may order such company to be wound up, and thereupon the company shall be wound up in the same manner as if an oi-der for the compulsory liquidation of the company had,been made by the Supreme Court under ‘The Companies Act, 1882”; (f) iiuiKj.se ,a fine upon such defendant of, a sum (exclusive of costs) not exceeding £1000; (g) order any defendant to pay to the Crown ,sucli costs and experts.#, including expense^of witnesses, us it may deem

reasonable, and may apportion such costs between the defendants (if more tluin one), as it thinks fit; fn) declare any defendant, not guiltv of an alleged monopoly, and award to’liim such costs and excuses tineluding expenses of witnesses) as it mas deem reasonable, and thereupon such defendant shall be entitled to be paid by the Crown the moneys so awarded to him. 25. For tho purpose of enforcing payment of tiny moneys payable by any defendant under any order of tho Court, a certificate in the prescribed form under the hand of the registrar of the Court and the seal of the Court., specifying the amount payable, and the respective defendants by whom the same is payable, may be filed in any Court having civil jurisdiction, to the extent of such amount, and shall, thereupon, accordin'/ to its tenor, be enforceable in all respects as a final judgment tinder "i he Crown .Suits A.-fc, JSBI,” of such Court in its civil jurisdiction. 26. Proceedings in the Court shall not be impeached or held had tor w ant of form, nor shall the same he removable to any other Court by certiorari or otherwise, and no proceeding, judgment, decree, or order of the Court shall be liable to be challenged, appealed against, reviewed, quashed, _ or called in question by any Court of judicature on any account whatever, but shall have full effect, and shall he • bserved, acted upon, and obeyed by all Courts of judicature.

27. No proceedings in the Court shall abate by reason of the death of any party to such proceedings, but the same may be continued, and disposed of by the successor in office of such member or legal personal representative of the party so dying.

28. If any member of the Court dies, resigns, or refuses or is unable to sat before the Court has pronounced its final judgment, decree, or order, tho proceedings shall not abate, hut. tho Chief Justice or the two other Judges of the Court may appoint another of the puisne Judges of the Supreme Court, to take the place of the member so dying, resigning, or refusing, or being unable to sit.

29. All moneys payable to the Crown tinder this Act shall be paid into the Public Account, and form part of the Consolidated Fund, and all moneys payable by the Crown shall be paid out of moneys to be appropriated by Parliament.

30. The Governor may from time to time, by Order in Council gazetted, make such regulations as lie thinks.fit prescribing the mode of convening the Court, the procedure

of the Court., the payment of fees in respect of proceedings, and generally carrying into effect the purposes of this Act.